WELL before a formal indictment, sections of the media and society have already rendered virtual verdicts on the guilt of retired Gen Pervez Musharraf. Given the manner in which public discourse is being framed by the media — and quite separate from whether such framing accurately reflects the majority of public opinion — given the past relationship between the general and

several former and serving senior judges, and for other reasons, this writer is of the opinion that a fair trial is not possible.

Our superior judiciary in recent years, despite frequent excesses and omissions of various kinds, has helped strengthen accountability. But in this instance, there is a perception of pre-determined bias that nullifies the prospect of impartiality.

Yet the trial cannot now be abandoned. Even an unfair trial enables the accused to express a viewpoint. For example, there can be a complete boycott of court proceedings, should they become patently partisan.

The general has not helped by avoiding appearances. While one wishes him good health and complete recovery, if his ill-health continues to require optimal rest, he should use a stretcher, if necessary, to appear in court soonest, listen to the charges, record his responses and request exemption from personal appearances till his condition improves.

By his absences, an impression is fostered of evasion, contrary to his quality of headstrong bravado. A man who did not want to become a fugitive, who ignored the strong pleas to stay overseas by family, friends, well-wishers — even the army?! — to boldly return home when all the odds were stacked against him should not now be reluctant to face trial.

On at least three grounds, the basis of the trial is selective and discriminatory. These are well-known grounds. They need reiteration, with the prefix of my known association — and disassociation — with the general.

Personal friendship with him of several years suffered with my resignation from his cabinet on Oct 13, 2000.

The reasons for resignation were to do with policy, not with personal issues. However, in public office, policy determinants and personal perspectives become potently fused and sometimes inseparable. One affects the other. But that is another story, better shared at another time.

Despite strong reservations about several of his actions between 1999 and 2008, this writer believes that the general is a fervently patriotic Pakistani capable of bad decisions but incapable of betraying the state. During his tenure, many progressive steps were taken, as were several regressive actions. To try him for high treason may be, by one interpretation, legally valid. But it is also a high travesty of the principles of natural justice.

His original sin took place on Oct 12, 1999. Seven months later, on May 12, 2000, after detailed deliberation, not rushed hearings, a 12-member Bench of the Supreme Court (including then Justices Iftikhar Chaudhry and Rana Bhagwandas) validated the removal of an elected government, legitimised the military intervention and, of its own volition, authorised the general to amend the Constitution.

Earlier, the same judges had taken a fresh oath under the rule of the same general. Only several years later — spurred by personal grievance of arbitrary dismissal of the chief justice in March 2007, not impersonal constitutional principles — a U-turn occurred. Suddenly, the true light dawned. Have those who were parties to the 2000 judgement been held accountable?

Then there is collective responsibility, in 1999 and in 2007. All credit to Chaudhry Shujaat for offering himself for trial for supporting the imposition of the emergency on Nov 3, 2007 — because he too was consulted, amongst many others, by the general before taking the decision.

Collective responsibility also applies post facto. The Nuremberg trials of Nazi generals after the Second World War concluded that those who obey unlawful orders are as guilty as those who give them. This principle has also been enunciated by Pakistan’s judiciary.

Chaudhry Shujaat beat me to the draw. But better late than never. This writer also offers himself for trial for being a cabinet member with the general from November 1999 to October 2000. There is no justification to single out the general alone, be it for 1999 or 2007. His signing the Proclamation of Emergency in November 2007 as chief of army staff does not detract from the hard fact that several dozen persons were aware of the imminent action, and either supported it, or later, obeyed it.

Is it ethically fair to only selectively apply retrospectivity to the 2007 action? The July 2009 Supreme Court judgement holding the 2007 Emergency to be violative of the Constitution should make retrospectivity commence with the first military intervention in October 1958. Be it posthumously, there should be trials held of Field Marshal Ayub Khan, Gen Yahya Khan and Gen Ziaul Haq and all their military, judicial and civilian colleagues.

The tragedy of Mr Bhutto’s unjust conviction by the judiciary and callous execution on the orders of Gen Ziaul Haq, and the dismissals/dissolution of Mr Nawaz Sharif’s governments in 1993 and 1999 with indirect or direct participation by the armed forces do not erase

the hard facts of past collaboration with the military by civilians who unfortunately later became victims.

Faced with the fait accompli of a trial clouded by doubts and reservations, Gen Musharraf and his lawyers should nevertheless persevere in their pursuit of justice. Material presented by the defence team during the trial should oblige re-visitation by sections of public, media and legal discourse to the prejudices and pronouncements presently filling columns and air waves.

The writer is a former senator and federal minister.

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